Hooters allegedly forces out waitress because her brain-tumor scar was ugly

A woman is suing Hooters for employment discrimination based on disability status for allegedly being forced out of her job as a waitress at the racy restaurants after she underwent cancer surgery, lost her hair and had a large scar on her head.

Hooters reportedly wanted her to wear a wig.  The woman tried, but it hurt her scar, which was still healing.  She says her hours were then cut back until she eventually was forced to quit.

Imagine a place like Hooters being so superficial.

Hooters, for anyone unaware, is a chain-restaurant where the waitresses wear very skimpy clothes in order to show off their usually-large breasts, which are known as “hooters” in American slang.

Hooters

The St. Louis Post Dispatch does a good job walking through the legal issues here (media doesn’t always do so well on that).  But in a nutshell, disability rights laws protect you from discrimination based on your disability or your perceived disability (meaning, someone refuses to hire you because they think you have AIDS, even if you don’t).  In this case, allegedly pushing a waitress out because her cancer has made her less attractive (in the management’s eyes), is a tough sell.  As the paper points out, the plaintiff needs to be able to prove that she was able to do her job.  But the question arises – or it’s one that Hooters will try to sell to the court – as to whether being a “hot chick” is essential to doing your job at Hooters.

While, sure, being a hot woman is essential working at HootersI’m not sure how a judge rules in favor of Hooters on this one, lest every business start alleging that its “public face” is important, and thus they discriminate against people with disabilities, and even minorities and women, because it’s “what the customers want.”

Now granted, we’re dealing with Hooters here.  But as FindLaw explains, it’s really not enough to simply say “our customers like pretty girls.”

Title VII prohibits employers from discriminating in employment decisions based on gender, race, national origin, religion or age. Many states make it illegal  to discriminate based on sexual orientation or transgender status.

Title VII also, however, allows for discrimination based on protected characteristics (except race), when that characteristic is what is called a “Bona Fide Occupational Qualification” (BFOQ). To be a BFOQ, being a member of that group is essential to the job.

To use this exception to the rule against discrimination, an employer must be able to prove that no member outside the desired group could perform the job. A simple example would be a job for a women’s bathroom attendant.

Employers can, and often do, however, go too far. For example, airlines have been prohibited from hiring only female flight attendants because men too can perform the basic function of the job.

Hooters went on to settle that other case.  So it’s still not entirely clear what would happen if they hadn’t settled.  But I’m not sure what the difference is between saying Hooters’ customers find cancer scars disturbing and saying every restaurant customer finds cancer scars disturbing.  Cancer is disturbing.  And too bad.  You don’t get to end someone’s career over it.  That’s kind of the whole point of disability laws.

I’m not entirely convinced that it should be legal for Hooters to exist at all.  But to the degree we want to make an exception for quasi-sexual jobs like Hooters, I think you have a much harder sell saying that we should now start making exceptions to disability laws as well.  At some point, a judge is going to say “enough.”  How much you want to bet Hooters settles this one too, rather than risk a defeat that could impact its restaurants nationwide?


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • Kali Blaze

    Amusingly, there’s an exception to the Disney facial hair rules: if you work in legal. Proof that most people will make an exception for themselves, given the opportunity. (who do you think does the final version of most dress codes? Legal, because part of their job is knowing what flies in court and what doesn’t.)

  • http://www.facebook.com/jesse.r.petersen Jesse Petersen

    Meh. I’ve been there 3 times, and only once was the food good… and that was when I got steamed oysters, which are impossible to f* up. One time I had cold fries and a soggy fish sandwich. Since it’s stupid to go to a restaurant for subpar food, and there’s nothing there that you couldn’t see on any beach in america, I’m not sure why it’s a business.

  • deadrat

    “I’m not entirely convinced that it should be legal for Hooters to exist at all. ”

    Because they violate the UCC provision against general tastelessness?

  • Drew2u

    I was going to reply on the post about the new HIV treatment for $10/month, but I couldn’t find that article so instead, I’ll post this here:
    Chemotherapy: 2,500 in India or 70,000 in the U.S.
    http://www.theatlantic.com/health/archive/2013/04/why-chemotherapy-that-costs-70-000-in-the-us-costs-2-500-in-india/274847/

    Can we start documenting these, now, and keep a tabulation of offenses similar to the TSA posts?

    and speaking of which:http://www.heraldstandard.com/united_states_ap/minn-airport-worker-charged-with-stealing-guns/article_1f989597-d610-5b42-a2fb-06234cb15eeb.html

  • Drew2u

    And a man’s ‘stache. Don’t forget that!

  • Kali Blaze

    But the restrictions on appearance have to be appropriate – they are essentially a dress code, and that’s how they’re treated legally. Which is why they had to stop a lot of the typecasting they did in the early days of the park.

    I’m a former CM, and it really is just a super-strict dress code, down to the color and style of your socks and how ‘big’ your hair can be (3″ for women, as of when I last worked there in ’07).

  • Freday63

    Wait, guys actually look that far up that they would notice a scar on her head?

  • A. Antoine

    No, that’s like saying that computation disabled and binary logic disabled and other minorities shouldn’t complain about computation dominated fields like engineering or binary logic dominated fields like programming.

  • http://adgitadiaries.com/ karmanot

    Goats eat bad boys.

  • http://adgitadiaries.com/ karmanot

    Oh, let’s name it. How a bout a classic like ‘asshole’?

  • SkippyFlipjack

    No, it’s actually not. That’s called a nasty knuckle-dragger.

  • HKDaniel

    ^^^^ That.

    Hooters would be wise to settle.

    They can remain their trashy selves for all I care, but they need to be honest and abandon this “family” restaurant smokescreen. That will be their downfall if they continue, as this case could easily prove.

  • Kes

    It’s also used for nasty knuckle-draggers who express such bigoted and misogynistic opinions that they’re reminiscent of the critters who lurk under bridges and eat goats.

  • SkippyFlipjack

    A “troll” is someone who is just trying to get people riled up and doesn’t necessarily believe in what they’re saying. They’re not someone you simply disagree with.

    You win an award. I’ll let you name it.

  • http://adgitadiaries.com/ karmanot

    Same here. never, never, never. :-)

  • Indigo

    Hooters at Hooters, I reckon. Never been there. I don’t do hooters so I don’t know Hooters.

  • http://adgitadiaries.com/ karmanot

    “a family friendly restaurant,”—– sigh

  • http://adgitadiaries.com/ karmanot

    And then his wallet got a hard on.

  • http://adgitadiaries.com/ karmanot

    So if you flag a waitress and complain, :”there’s a boob in my coffee,” you can expect her to say. There’s only room for one, its Hooters! Whaddaya ‘spect? :-)

  • http://adgitadiaries.com/ karmanot

    Yep, it’s tit for tat.

  • http://adgitadiaries.com/ karmanot

    I never recovered from the shock of seeing Janet Jackson’s nipple!

  • http://www.rebeccamorn.com/mind BeccaM

    C’mon. Hooters is and always has been a soft-porn themed sports-bar masquerading as a respectable family restaurant. If that wasn’t its entire business model, they’d have male waiters — but they don’t. Or they’d have some women waitresses not dressed exclusively in skimpy outfits barfed straight out of Xanadu. (“Hello Hooters? The 1980s called. They’d like their tube socks and satin gym-shorts back.”)

    I have little doubt they’re following Nicho’s legal rationale below, that these young buxom women aren’t technically waitresses, but performers who happen to serve food as part of their act. Anyone think a strip club is going to hire a dancer who’s had major abdominal surgery or a mastectomy?

    At some point, they’re going to have to come clean and admit they’re not really a ‘family restaurant’ — because if they are, all kinds of hellfire in the form of sex discrimination, sexual harassment, and ADA lawsuits become possible.

    Anyway, Hooters objectifies and sexualizes pretty girls so their primarily male customer base don’t notice that their food is overpriced and quite crappy. Y’know, the old joke about men having two main organs and blood enough to run only one at a time.

  • Kes

    “How can Hooters be sued for sexual harrassment? Every woman who voluntarily takes a job there knows quite well the nature of the job. It’s not like it was sprung on them after they got hired.”

    That’s like saying that white women and other minorities shouldn’t complain about harassment in their workplace when they’re entering traditionally male/white-dominated fields like engineering or programming, because they should’ve known what to expect. And comparing a woman who doesn’t want to be groped by male patrons with a pharmacist who refuses to fill birth control prescriptions is just all kinds of misogynistic stupid. You win the troll award.

  • Asterix

    If “being pretty” is a BFOQ for Hooters, I’d like to see where it’s explicitly and objectively documented in their policies, not just “looking attractive”. In other words, what must the density of hairs on the scalp be at a minimum? Are moles okay? If so, where on the body? What are acceptable criteria for the positioning of eyes relative to the center of the nose? How big or small can the nose be?

    This ought to be a riot of laughs.

  • TheOriginalLiz

    What – did she think that with a name like “Hooters” the business was going to be a model of respect and compassion? Really? Welcome to the real world honey.

  • Indigo

    Ditto. I also use that excuse for not watching Monday night football. That or, “I don’t know, I don’t follow hockey.”

  • Indigo

    Oh, yeah. That’s what life in Orland’oh is all about. It’s all Disneywhirled! the whole shebang. You’re a performer!

  • Indigo

    Oh, well. It’s Hooters. Her boobs weren’t big enough to off set any impression made by the scar and besides, it’s Hooters! Whaddaya ‘spect?

  • http://www.facebook.com/monoceros.forth Monoceros Forth

    Is Hooters even any good when it comes to food? I’ve never been to one but more than one acquaintance has told me they’ve got good hot wings. But I don’t like hot wings so there’s no point really.

  • Naja pallida

    I think the main issue would be that sexual harassment has been their business model now for 30 years, and very little has been done to stop it. There have been a few cases against them, like one about not hiring men for wait staff, and a few issues that have hit the news about the weight of applicants or their bust size, but there should be no surprises at all to anyone applying for a job there. It would be pretty damn hard to explain to a court that you didn’t know that going into it. Should Hooters have been more sensible in addressing the problem? Sure… but what chain restaurant that treats its staff like crap anyway is going to bother going to that kind of effort for one employee when they can simply force them out and replace them?

  • http://AMERICAblog.com/ John Aravosis

    Oh that’s interesting

  • William Barido

    This doesn’t seem to be much different from when airlines used to force “Stewardesses to leave because they were perceived as too old.” And we all know how that worked out for the airlines.

  • nicho

    Well, if they’re smart, Hooters can get away with it the same way Disney does. The employees are not really employees at Disney. They are “cast members” in a “show.” This allows Disney to impose all sorts of restrictions on their appearance.

  • Naja pallida

    So that means you haven’t gone to a Hooters because you have some semblance of taste? :)

  • Naja pallida

    Yeah, I watched that episode. It was truly hilarious, and bespeaks of a profound obliviousness on the part of the Hooters management. He kept talking about how they are aiming to be a family friendly restaurant, and that was the image that he wanted his managers to be projecting. Sad is the only word I can think to describe it.

  • loona_c

    That show “Undercover Boss” or whatever did an episode where the boss of Hooters went undercover in restaurants and was shocked! Shocked I tell you! That waitresses were being treated in an inappropriate sexual manner by restaurant manager (I don’t recall him worrying about how they were treated by partons). And also talking to women on the street and again being shocked! that they didn’t go to eat there and they thought the place was sexist. I tell you he was shocked!

  • silas1898

    How can Hooters be sued for sexual harrassment? Every woman who voluntarily takes a job there knows quite well the nature of the job. It’s not like it was sprung on them after they got hired. Flirting is also in the best economic interest of the waitress in the form of bigger tips. It also makes more money for the company, which is the purpose of the whole exercise.

    The same for these fundie pharmacists who want to pick and choose which medications to dispense because some of them “offend” them. Sorry, the job is to fill ALL prescriptions.

    This is a tough case because presentation is hugely important in the restaurant business. If I have a waiter who looks dirty in a ripped stained T-shirt and cut-offs; I won’t be going back. It’s different than the local Pizza Palace, where that matters less. The company should have paid her disability or something until her hair grew back.

  • http://www.facebook.com/elijah.shalis Elijah Shalis

    I thought the only qualification was having big boobs? I’ve never been there as I am gay.

  • Kes

    Hooters is just a walking class-action sexual harassment suit waiting to happen. One of my friends was employed as a Hooters waitress for several years during college, and she was routinely told that it was an explicit part of her job that she flirt with the male customers. The entire business model is based on subjecting female employees to all sorts of vile crap.
    It’d be ironic, indeed, if a company could avoid claims of sexual harassment or discrimination by simply claiming that it’s part of their business model. The worse the atmosphere is, in a sense, the more innoculated the business becomes from lawsuits?

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